coercion claims (ss 343 and 348)
59 In support of its submission that the FWO has no prospect of success on its claims under ss 343 or 348, the AWU contended that factual matters which the FWO has the burden of establishing are not alleged by the ASOC and that therefore its claims are deficient and must fail. To deal with that argument I need to consider what it is that an applicant bears the onus of establishing in a proceeding brought pursuant to ss 343 or 384.
60 As is evident from what I said at [216] of Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446 in relation to the operation of s 343(1), the applicant bears the onus of establishing the "action" organised, taken or threatened. The same must equally apply in relation to s 348. There was no issue taken by the AWU with the FWO's prospect, on the face of the pleading, of establishing that the "action" was organised, taken or threatened.
61 As both sections 343 and 348 are found in Part 3-1, of the FW Act and an element in the contravention of each of those sections is that action was taken for a "particular reason" or a "particular intent", s 361 applies. Section 361(1) provides that where a particular reason or intent has been alleged "it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person [the respondent] proves otherwise" ("s 361 presumption").
62 The legislative predecessor to ss 343 and 348 was s 170NC(1) of the Workplace Relations Act 1996 (Cth) ("WR Act"). The WR Act contained a legislative predecessor to s 361(1), however that section had no application to s 170NC(1). As a result, the authorities on s 170NC(1) do not provide any guidance as to the intended operation of a presumption like that contained in s 361(1) to coercion provisions. However, the authorities on s 170NC(1) are nevertheless helpful. They have determined that two elements need to be established to prove "intent to coerce", a phrase repeated in ss 343 and 348. The often cited observation of Merkel J in Seven Network (Operations) Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at 388 identifies those two elements as follows:
The above cases establish that there must be two elements to prove "intent to coerce" under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.
63 As Buchanan and Griffiths JJ observed in Victoria v Construction, Forestry, Mining and Energy Union at [72] those two elements have their origin in the legal meaning of the concepts of coercion and duress at common law. At [70] and in dealing with s 343 of the FW Act, Buchanan and Griffiths JJ described the meaning of the term "intent to coerce", as used in s 343, as being "settled".
64 Similarly, Buchanan J (with whom Siopis J agreed) in Esso Australia Pty Ltd v The Australian Workers' Union (2016) 245 FCR 39 at [174] observed by reference to a survey of the authorities, that "[c]oercion has been held to require the satisfaction of two elements: negation of choice; and the use of unlawful, or illegitimate or unconscionable means".
65 At [194], Buchanan J said this (emphasis added):
The requirement of intent applies to the purpose of negating choice. The additional element that the means employed be unlawful, etc. involves an objective test. That approach is consistent with the common law origins of the notion of coercion which can be traced back to the tort of economic duress, as explained in the cases to which I have referred earlier. In that common law context, the notion of purpose, or intent, applies to the first element but not the second.
66 Those observations, consistently with the approach I took in McCorkell, demonstrate that in relation to each of ss 343 and 348, the s 361 presumption will have application to the first element of "intent to coerce", the intention to negate choice. But the s 361 presumption will not have application to the second element, the use of unlawful, illegitimate, or unconscionable means, which, as Buchanan J said in Esso, involves an objective test.
67 However, the s 361 presumption is concerned only with the onus of proof and is not of itself determinative of the question of intent. Even if I were to find in this summary judgment application that the FWO could not take the benefit of the s 361 presumption, it would still be open to the FWO to prove the alleged intent at trial. The ASOC alleges that Davis and Wood intended to coerce Dunton and Haworth to engage in protected industrial action or industrial activity. Taken at their highest, as must be done on a summary judgment application, those facts provide a basis for saying that the FWO has a reasonable prospect of establishing that Davis and Wood had the necessary intention.
68 To summarise so far, without the benefit of the s 361 presumption, in a proceeding brought under ss 343 or 348, an applicant will need to establish the "action" taken by the respondent against "another person" and that the action was unlawful, illegitimate or unconscionable. To prove that the action was taken with an intent to negate the other person's choice to exercise or not exercise a workplace right (in relation to s 343) or to engage or not engage in industrial activity (in relation to s 348) ("protected choice"), an applicant will have the benefit of the s 361 presumption.
69 That leaves for consideration one final aspect relevant to both ss 343 and 348. That is, whether an applicant must also establish the factual existence of the circumstance said to be the subject of the coercive "action" to succeed at prosecuting a case of coercion under ss 343 or 348, and if that is so, the nature of the circumstance required to be established.
70 That question has been the subject of judicial consideration, at least inferentially, in relation to s 340(1)(a) and its predecessors, as I will shortly outline. Those cases have invariably approached the question through the prism of s 361(1) and its predecessors. That is, in cases in which the circumstance said to be the "reason" for adverse action was not established as an objective fact, it was held that the applicant could not take the benefit of the s 361 presumption. Whether cases of this sort establish the proposition that the circumstance itself is, of necessity, an element of a s 340 cause of action is less clear. It does not follow that an applicant said to be unable to take the benefit of the s 361 presumption is necessarily unable to make out the cause of action. The applicant might, for instance, prove at trial that even though the circumstance did not in fact exist, the respondent mistakenly believed it to exist, and was thereby actuated by a prohibited reason. Victims of various forms of discriminatory conduct are protected not only against action taken because the victim has a particular attribute (for example sex, race, religion or disability) but also where such an attribute has been wrongly imputed to the victim. In relation to persecution "for reasons of" a protected attribute as a criterion for a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth), Burchett J (with whom O'Loughlin and Nicholson JJ agreed) said (at 568) in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565:
The words "persecuted for reasons of" look to [the persecutor's] motives and attitudes, and a victim may be persecuted for reasons of race or social group, to which they think he belongs, even if in truth they are mistaken. Hitler's ghastly views about race, for instance, led to persons being classified as Jewish who had appropriately regarded themselves as German; the perception of the authorities was then the important reality which determined their fate.
Another example can be seen in the definition of "disability" under s 4 of the Disability Discrimination Act 1992 (Cth), said, by paragraph (k), to include a disability that is imputed to a person.
71 Why the position should be different under those provisions of the FW Act where a contravention depends upon particular action being taken for a prohibited reason or with a prohibited intent is not apparent either textually or by reason of an underlying policy or purpose. But the issue was not the direct subject of any submissions before me. I do not express my concluded view on the subject, and so far as s 340(1)(a) is concerned the position seems to be settled.
72 As Jessup J (with whom Allsop CJ and White J agreed) said in Tattsbet Limited v Morrow (2015) 233 FCR 46 at [119], there is a history of many first-instance judgments of this Court where:
… it has been treated as uncontroversial that the party making an allegation that adverse action was taken "because" of a particular circumstance needs to establish the existence of the circumstance as an objective fact…
See also Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] (Branson J); Bahonko v Sterjov (2007) 167 IR 43 at [96]-[101] (Jessup J); Police Federation of Australia v Nixon (2008) 168 FCR 340 at [68] (Ryan J); Rojas v Esselte Australia Pty Limited (No 2) (2008) 177 IR 306 at [49]-[50] (Moore J); Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 at [10] (Collier J); Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [329]-[331] (Barker J); Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [59] (Katzmann J); Stephens v Australian Postal Corporation [2014] FCA 732 at [13] (Flick J).
73 However, I was not referred to any cases in which that approach has been applied to ss 343 or 348. Unlike s 340(1)(a) which is concerned with "action" which may be characterised as reprisal for past conduct, ss 343 and 348 are concerned with "action" that seeks to influence future conduct. As Jessup J went on to say at [120] of Tattsbet, the jurisprudence to which his Honour referred at [119] was relevant to the application of the s 361 presumption to a s 340(1)(a) case and that different considerations may apply in a case reliant upon s 340(1)(b). Section 340(1)(b) is a new provision introduced by the FW Act, addressed at future conduct, and may have more in common with ss 343 and 348 coercion than with s340(1)(a) adverse action.
74 Without expressing a concluded view on whether a similar approach is required in relation to ss 343 and 348, in favour of the AWU, I will presume that it is. However, as I will explain, in the application of that presumption I consider that the nature of the "circumstance" to be proved by an applicant must take into account the subject dealt with by ss 343 and 348.
75 I turn then to the particular challenge made by the AWU to the FWO's ss 343 and 348 cases. The AWU contended that the FWO has no reasonable prospect of establishing action with intent to coerce. The ASOC asserts that the AWU contravened s 343 by engaging in conduct with intent to coerce Dunton and Haworth to exercise a workplace right to take protected industrial action and contravened s 348 by engaging in the same conduct with intent to coerce Dunton and Haworth to engage in industrial activity. However, the AWU pointed to the lack of any allegation in the ASOC that there was any protected industrial action on foot or in prospect at the time of the AWU's conduct. In those circumstances, the AWU contended that there was not a reasonable prospect of establishing a contravention of either ss 343 or 348.
76 The basis for the AWU's contention, as explained in oral submissions, was that the factual foundation required to be established by the FWO was that at the time that the "unjustifiable disciplinary action" was taken, the taking of protected industrial action by employees at Orica was in prospect. As the ASOC makes no allegation that further protected industrial action was intended or that such action was otherwise in prospect, the AWU contended that the FWO's claims had no reasonable prospect of success.
77 The FWO pointed to the surrounding factual context pleaded in the ASOC, including that the alleged coercive "action" took place during a period of ongoing negotiations for an enterprise agreement, and contended that there were sufficient facts pleaded from which it could be concluded that prospective protected industrial action was a possibility. However, what I perceive to be the FWO's primary contention, is that it is not for an applicant in a case of this kind, where the action taken by the respondent may be seen to be directed at deterring a future refusal to engage in protected industrial action, to prove that the taking of future protected industrial action is in prospect. That contention was based on the asserted need to give the provisions a "fair, large and liberal" meaning that would achieve the objects of Part 3-1.
78 The AWU's submission rests on the premise that the "circumstance", or foundational fact, to be proved by the FWO in order to make out its claims under ss 343 and 348 is the existence of actual or prospective industrial activity. I do not consider the premise to be correct. As alluded to above, ss 343 and 348 are provisions concerned with action taken to negate a choice, or, more particularly, the negation of a protected choice. On this basis, I consider that the focus of the enquiry in relation to ss 343 and 348 must be on the relevant protected choice. In that context it might be said that the "circumstance" to be established by an applicant is that the relevant protected choice was available to be negated. In other words, that the choice to either exercise or not exercise a workplace right (in relation to s 343) or to either engage or not engage in industrial activity (in relation to s 348) existed at the time that the coercive "action" was taken.
79 I accept the FWO's submission that it is more than merely arguable that, in the context of ongoing negotiations for an enterprise agreement, there remained a real, and not fanciful, possibility of future protected industrial action. However, if the foundational fact to be proved by the FWO is the protected choice, then the existence or prospect of industrial activity will not of itself be determinative. For instance, even if protected industrial action was in prospect, the choice may have been abrogated by Dunton and Haworth if they had come to the view that they would not again choose to participate in protected action. In other words, the intentions or actions of Dunton and Haworth themselves, could have negated the existence of the protected choice when the "action" was taken.
80 The ASOC does not allege explicitly that at the time of the "unjustifiable disciplinary action" the protected choice existed. But the AWU did not rely on the absence of that allegation and it should not be the basis upon which summary dismissal is granted. In any event, given the absence of clear authority on the issue of what foundational facts are to be proved by an applicant, I consider that this issue is best left to trial.
81 For those reasons the AWU fails in its application for the summary dismissal of the ss 343 and 348 claims.